About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 377
|
|
Tshoane v Road Accident Fund (42022/2017) [2021] ZAGPPHC 377 (21 January 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
42022/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
TEBOGO
PRECIOUS TSHOANE
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
1.
1.1
The plaintiff, a 34 (thirty four) year old
woman, instituted against the defendant for damages arising from a
motor vehicle accident
that occurred on 25 December 2015. At
the hearing of the matter I was informed of the fact that merits has
been conceded
and that the defendant undertakes to pay 100% of the
plaintiff's proven or agreed damages.
1.2
In the plaintiff's particulars of claim it
is alleged that the plaintiff sustained the following injuries:
1.2.1
Multiple rib fractures;
1.2.2
A dislocated left pelvic bone; and
1.2.3
A deep wound on the plaintiff's left knee.
1.3
The plaintiff obtained medico-legal reports
from the following experts in support of her claim:
1.3.1
Dr SM Mogaladi (Cardio Thoracic Surgeon);
1.3.2
Dr Jan DC Heymans (Orthopaedic Surgeon);
1.3.3
Sabatha Mogoane (Occupational Therapist);
1.3.4
PZ Zeeman (Chartered Accountant);
1.3.5
Dr LA Fine (Psychiatrist);
1.3.6
B Moodie (Industrial Psychologist);
1.3.7
Munro Actuaries (Actuary).
1.4
There was no appearance on behalf of the
defendant when the matter commenced.
1.5
I was informed that the only dispute
between the parties related to the plaintiff's claim for past and
future loss of earnings.
I was informed by plaintiff's counsel
that he intended to call the following witnesses namely:
1.5.1
the plaintiff;
1.5.2
Mr Kgati;
1.5.3
Leonard Makole;
1.5.4
Mr B Moodie (Industrial Psychologist);
1.5.5
Willem Boshoff (Actuary).
1.6
I was informed that the remainder of the
medico-legal reports were admitted by the defendant. I have not
seen any express
acceptance of the plaintiff's medico-legal reports
by the defendant but I accept the correctness of what I was conveyed
by plaintiff's
counsel.
ANALYSIS OF THE
MEDICO-LEGAL REPORTS:
2.
2.1
Medical Report by Dr SM Mogaladi (Cardio
Thoracic Surgeon):
The salient aspects of
this report are set out below:
"
According to Dr
Mogaladi the plaintiff sustained the following injuries:
1.
Blunt chest injury;
2.
Multiple ribs fractured both sides;
3.
Left hemothorax;
4.
Left hip fracture dislocation;
5.
Left hand laceration on the dorsal
aspect.
The plaintiff
complains of left sided chest pains with shortness of breath and left
hip pain. She walks with an antalgic gait
and she has constant
pain that requires intermittent analgesia. Prior to this
accident, the plaintiff sustained a left femur
fracture in May 2005.
The plaintiff is
unable to lift heavy objects and walk fast. She also has
disfiguring scars on her left arm and knee.
The clinical
evaluation reveals good entry in both lungs bilaterally. There
are no abnormal breathe sounds and the plaintiff
is able to inhale
deeply without eliciting pleuritic chest pain. She has no
tenderness over the drain insertion site and
ribs fractures
laterally.
Dr
Mogaladi concludes by indicating that the plaintiff sustained
multiple rib fractures on the left with orthopaedic injuries.
She has malunion of ribs 4 – 7 with good bone healing.
This could be responsible for her chronic pain due to nerve
compression by the bone callus. She will benefit from
conservative management as further surgical interventions may result
in more harm due to the long time period that has lapsed after her
injuries.
"
2.2
Medical Report by Dr Jan DC Heymans
(Orthopaedic Surgeon):
The salient aspect of
this report are set out below:
"
According to Dr
Heymans the plaintiff sustained the following injuries:
1.
A soft tissue injury to her left hand;
2.
A chest injury with multiple rib
fractures on the left sided hemothorax;
3.
Soft tissue injuries to her left knee
and a dislocation of her left hip.
The plaintiff was
taken to the Pietersburg Hospital where her hip was reduced and she
was treated conservatively.
At the time of the
accident the plaintiff was self-employed as a caterer. After
the accident she was on sick leave for 1 year
before resuming her
duties. At present the plaintiff is still employed as a
caterer.
The plaintiff
complains about severe chest pain. She states that she is
unable to lift her left arm due to chest pain and
she has difficulty
talking due to chest pain. The plaintiff also complains about
pain and discomfort in her left hip.
On examination, the
plaintiff mobilises with an antalgic gait. The plaintiff has
severe tenderness over the left hemothorax
extending to the left
shoulder. The plaintiff is unable to lift her left arm due to
chest pain. Examination of the
left hip reveals joint
tenderness with decreased range of motion in the hip.
The plaintiff
completed matric. At the time of the accident she was
self-employed as a caterer. After the accident she
was on sick
leave for 1 (one) year before resuming her duties. At present
the plaintiff is still self-employed as a caterer.
With
the recommended treatment, the plaintiff's orthopaedic symptoms
should clear up to such an extent that she will only be fit
to do
light duties only. She will not be able to handle heavy objects
or to do strenuous work and should avoid standing for
prolonged
periods or walking on uneven surfaces. It should be noted that
the plaintiff is not an equal competitor in the
open labour market.
"
2.3
Medical Report by Dr Viller
(Pulmonologist):
The salient aspect of
this report are set out below:
"
Mrs Tshoane
suffered chest and orthopaedic injuries in the accident that occurred
on 25/12/2015. There is a nexus between
the accident, treatment
required, as well as long-term sequelae in terms of ongoing
orthopaedic and respiratory symptoms.
1.4
On examination, tenderness of the chest wall remains over the area
affected. Although
she healed well from her chest injury,
long-term pain is common in the majority of blunt trauma patients.
1.6
A chest x-ray 15/04/2019 did not reveal parenchymal decease and
diaphragmatic movement was
normal, excluding phrenic nerve injury.
No malunited rib fractures noted.
1.8
The pneumothorax parse carries a no long-term sequelae in the absence
of additional chronic
respiratory decease.
1.9.3
Physiotherapy and pulmonary rehabilitation will aid in decreasing
pain an increasing functional status and conditioning.
2.2
It is clear that a physical ability is limited in terms of her
running her own business,
for which there is a physical demand
(lifting, carrying and moving heavy equipment).
"
2.4
Medical Report by S Mogoane
(Occupational Therapist):
The salient aspect of
this report are set out below:
"
2.1
She reported that she was involved in a motor vehicle accident in
2005. She reportedly sustained
a left femur fracture and it was
managed with ORIF which remains in situ. After this accident,
she struggled to stand for
long or lift heavy objects due to left
thigh pain. She continues to suffer left thigh pain which she
states it has worsened
following this accident in 2015.
5.1
SUMMARY OF ASSESSMENT FINDINGS:
a.
Ms Tshoane was 32 years, 11 months old at the time of this
consultation.
b.
She has a Grade 12, Business Administration and Basic Ambulance
Assistance Certificates.
She also has a code 10 driving
licence. Other than that, she has no other vocational training
and skills.
6.2
FUNCTIONAL CAPACITY AND EMPLOYMENT POTENTIAL:
a)
Throughout her working life thus far, Ms Tshoane generated an income
by working
on self-employment basis. She started in the
year 2008/9, thus after the accident in 2005. She sold
food at a
taxi rank, baked and sold scones from home and was a
tenderpreneur. These was still the case at the time of this
accident
in December 2015.
c.
Following the accident, she suffered financial loss siting that she
stopped her
cooking and food selling business and she also stopped
baking and selling scones. She stated that she struggled to
chop vegetables
or cut meat due to the left hand weakness and to
stand for long when cooking due to the left hip and thigh pain.
Her assistant
was the only person responsible for cook and as a
result, the business was slow and did not make much profit. She
added that
she could not continue to bake to injuries sustained.
She closed her other business in June 2018.
d.
She stated that she continues to work on a self-employment basis,
applying for
tenders. She no longer applies for catering
tenders due to her physical limitations with resultant limitations.
She
applies only for supplied tenders. After securing a tender,
she hires a person to help her purchase and supply the requested
orders.
Given her overall
physical presentation and expert opinions, Ms Tshoane is ideally
suited for sedentary or light type of work and
this should be done
with reasonable accommodation. She is unsuited for any type of
work that requires strong ability or agility
skills, sustenance of
static positions such as sitting or standing constantly or sustaining
dynamic positions or performance of
tasks that requires gross
involvement of both her upper and lower limbs as well as working
above head level. Furthermore,
she is not suited for tasks that
require bilateral hand use, such includes her aspired work of
securing an administrative work.
She will need reasonable
accommodation which includes frequent postural changes, taking rest
breaks in between her duties and to
consistently comply with joint
savings principles to avoid undue strain to her affected upper and
lower extremities.
Her overall physical
capacity is and would remain compromised and this is due to injuries
sustained.
Given her residual
functional capacity which is compromised by the sequelae of the
accident sustained injuries, Ms Tshoane is considered
an unequal
competitor and a vulnerable employee in the open labour market.
The
writer opines that Ms Tshoane should cope with managing her business
or working on self-employment basis. She however
will need to
employ people for assistance. She will be limited to performing
sedentary and light tasks only. Even in
these job parameters,
she will however require reasonable accommodations as discussed
above.
"
2.5
Medical Report by Dr LA Fine
(Psychiatrist):
The salient aspects of
the report of Dr Fine are set out below:
"
She passed Grade
12 without repeating any years, and then studied at Business
Management College, and then worked for RTT Couriers
for 2 years and
then was self-employed.
The
plaintiff presents with symptoms of post-traumatic stress order and
of depression, secondary to the effects of her physical
injuries,
impairing her ability to perform and to enjoy her normal activities
of daily living and life amenities.
"
2.6
Medical Report by PD Zeeman (Chartered
Accountant):
The salient aspects of
the report of Mr Zeeman are set out below:
"
At the time of
the accident the plaintiff was reportedly self-employed as a caterer
preparing and selling African cuisine meals
at the local taxi rank,
catering at taxi association meetings and catering for a variety of
clients on a tender basis.
Following the accident
on 25 December 2015, the plaintiff took a period of 1 year to
recuperate, earning no income during the period
of recuperation.
The plaintiff returned to her business some time during early January
2017.
After reopening her
business, the plaintiff reportedly found that due to the sequelae of
the injuries suffered by her in the accident
of 25 December 2015, she
could not perform her post-accident work as a caterer to the same
standards or quantities she could pre-accident
– as a result of
which she has suffered a past loss of earnings and will suffer a
future loss of earnings.
I have taken specific
note of the report of Mr Moodie and his voluminous reporting of
plaintiff's level of earning and earning activities,
pre- and
post-accident, as verbally obtained by him from the plaintiff.
The only documentation
received by Mr Moodie from the plaintiff are the bank statements of
Previc Trading and Projects (Pty) Ltd
as reported on pages 25 to 42
of his report. To determine the broad monthly movements of the
bank account, I have prepared
the attached schedule 1. This
schedule shows that the coverage thereof is all post-accident with
large gaps in coverage that
occurred – gaps which Mr Moodie
explains by reporting that plaintiff only handed those bank
statements which contained inflows
of funds, to him.
In order to calculate
a loss of income claim, it has to be determined what can reasonably
be expected the likely income of the plaintiff
would have been but
for the accident, and what it has been and will likely be having
regard to the accident.
The
absence of independently verifiable information regarding the
plaintiff's past and future loss of earnings, make the attainment
of
the above stated objectives impossible.
"
2.7
Medical Report by B Moodie (Industrial
Psychologist):
The salient aspects of
the report of Dr Moodie are set out below:
"
The plaintiff's
qualifications include a one year certificate obtained in Business
Administration was well as a one year Basic Ambulance
Assistance
Course that the plaintiff completed in 2013.
The plaintiff
previously worked as a self-employed courier / delivery person
from 2008 until 2014 and she earned approximately
R5,000.00 per
month. In January 2014 she sold her Corsa bakkie and used the
money to start up a new business under the company
Previc Trading and
Projects CC. She registered her company with the Companies and
Intellectual Property Commission in October 2014
using the money
from selling her Corsa bakkie. She also put in a small deposit
on a Hyundai i20 (2014 model) which she purchased
on finance.
She cooked African
cuisine at the local taxi rank in Pankop and prepared food for the
taxi association meetings. She would
transport the foods and
necessary equipment from home to the taxi rank making use of her
Hyundai i20. She set up a stand
at the taxi rank and made use
of portable gas stoves to prepare meals. Ms Tshoane also
applied for tenders at the local municipality.
Her tenders were
catering tenders which required prepare and supply food and beverages
for conferences, meetings or events.
She reported securing
approximately 5 tenders from the municipality per annum and made use
of their kitchen and equipment.
According to Ms Tshoane she
primarily received an income from selling meals at the taxi rank,
catering for the taxi association
tenders.
She reported selling
approximately 50 meals per day at R30.00 each (pap and sheba).
Her average gross
profit for selling meals at the taxi rank then amounted to R1,500.00
per day / R7,500.00 per week / R32,497.00
per month.
She reported that once
a month she would cater for the taxi associations' meetings at R55.00
per head (meal and drink), for approximately
60 members, from which
she would earn an average gross profit of R3,300.00.
Ms Tshoane furthermore
reported that the tenders she secured at the municipality would be
issued at R20,000.00 (gross profit) of
which she would spend
R12,000.00 on produce. The used the municipality's resources to
prepare these meals.
According to Mr Moodie
(based on the evidence provided to him by the plaintiff), the
plaintiff made an average profit of R17,300.00
per month /
R207,610.00 per annum.
Post-accident the
plaintiff was allegedly unable to cope with the work herself, as a
result of her pain and accident related difficulties.
The
plaintiff allegedly battled with the pain in her left arm and chest,
she experienced difficulties loading her vehicle with
stock and
taking it to the taxi rank to prepare the meals. The pots and
stock were too heavy for her to lift and caused her
pain.
Standing for long periods resulted in excessive pain in her hip.
She battled to rest at night as a result of
the pain and discomfort
and was left fatigued in the morning and throughout the day.
The physical strain
made her realise that she required assistance, so she employed an
assistant on a daily basis at R200.00 per
day. Ms Tshoane
reported that the assistant would help with the carrying goods and
the cooking. They worked at the
taxi rank for approximately 2
months, before people started complaining about the change of quality
of the food. Ms Tshoane
felt that her passion for preparing
meals had declined and she received complaints from her customers.
Ms Tshoane reported
that with the drop in sales and the cost of her
assistant it was no longer profitable for her continue at the taxi
rank on a daily
basis, she furthermore did not see herself being able
to continue due to these psychological and physical limitations.
According to Mr Moodie
the plaintiff made a profit of R63,536.34 between March 2017 and
November 2019. According to the plaintiff
she does not earn an
income every month. She supplied Mr Moodie with bank statements
only for the months she earned an income.
It is noted that the
plaintiff's 2019 bank statements reflect that she is spending most if
not all of the money she received.
On questioning as to why Ms
Tshoane was spending was spending all of her funds she indicated that
small jobs don't allow for bulk
buying so her costs are higher, she
furthermore indicated that for events, she pays an assistant R250.00
per day to assist (when
she is available) which also takes away from
her profitability.
She
reported that she mainly does the work to assist people she knows but
is no longer advertising herself as a business as she
is in too much
pain to perform her work on a daily basis or in the same capacity as
she used to.
"
Pre-accident income
potential:
At the time of the
accident (December 2015), Ms Tshoane was working in a self-employed
capacity as a caterer. There is no
proof regarding Ms Tshoane's
earnings pre-accident. Her reported earnings based on the
information she provided regarding
her income and expenses amount to
average profit earnings of R17,300.00 per month / R207,610.00 per
annum for 12 months a year
of work. According to Mr Moodie the
plaintiff's business
could have grown
by at least 20% per
annum over a period of 5 years. This would have resulted in
doubling her personal income (i.e. R415,220.00
per annum / R34,601.66
per month) by December 2020.
But for the accident
the plaintiff would have continued working in the said capacity, of
similar earnings, receiving an increase
in profit only in line with
inflation until normal retirement age (65 years).
Post-accident:
Ms Tshoane returned to
her pre-accident work as a caterer in 2017. She battled with
pain and limitations and felt like she
was not preparing meals at the
best of her abilities any longer. Complaints from her regular
clients made her realise that
she could not cope in her pre-accident
capacity.
She consequently
stopped working at the taxi rank, resulting in an approximate profit
loss of R13,967.00 per month / R167,610.00
per annum. Ms
Tshoane now also performs as a baker or a small time caterer when
work is available from people she knows.
These jobs are erratic
and do not provide a stable income like her previous work at the taxi
rank. Her profits have decreased
significantly, as per bank
statements received, she also now has to pay an assistant R250.00 per
day.
According to Mr Moodie
it is recommended that following her treatment, she be allowed a
period of 2 – 3 months to restart
business and find a permanent
assistant. It is predicted that now, post-accident, Ms Tshoane
would start her business on
profit earnings of R3,000.00 to R4,000.00
per month increasing her earnings to on par with her pre-accident
earnings after 1 year,
i.e., R17,000.00 per month as she had proved
that she had been able to earn that amount pre-accident after a
period of 1 year.
it is accepted that her career and earnings
growth will thereafter increase as predicted pre-accident over a
5-year period.
According to Mr Moodie the plaintiff will reach
the same career in earnings growth over the predicted 5 years,
eventually doubling
her income, and then increasing her earnings in
line with inflation only until the retirement, provided that she
receive the recommended
treatment and be provided with an assistant.
The
estimated value of her assistant would be initially R250.00 per day –
6 days per week. These earnings will eventually
escalate to an
amount of R320.00 per day over a period of 5 years; this amount does
not account for overtime that will inevitably
occur due to events
usually occurring on weekends and lasting well into the evening.
Ms Tshoane will have to remunerate
her assistant well in order
to keep him/her and prevent them from starting their own company to
work as her competition.
Therefore, an annual allowance of
R78,000.00 (exclusive of overtime for weekend or late-night shifts)
should be initially accounted
for, increasing to R99,832.00 per annum
over 5 years. It is suggested that Ms Tshoane's loss of
income would then be
based on the grounds that she would have to
employ such an assistant in order to continue with her business.
"
EVIDENCE OF THE
PLAINTIFF:
4.
4.1
The catering business of the Plaintiff was
conducted in a Close Corporation namely Previc Trading and Projects
CC. No evidence was
initially presented at to who the members are of
this Close Corporation and what the respective members interest is.
4.2
At the end of the Plaintiff’s
evidence, I sought clarification from the bench and was then informed
that the Close Corporation
in fact had two members but that she had
bought out the other member. No documents were discovered or
presented in evidence in
this regard.
4.3
The bank statements of the business
accordingly do not reflect her own personal income but reflects the
income of the business.
4.4
The plaintiff was unaware of what she spent
per month in terms of expenses for this catering business.
4.5
She was also unsure about the income she
received per month.
4.6
The figures that she mentioned did not
accord with the figures recorded in the comprehensive report of Mr
Moodie.
4.7
It further became evident during the
plaintiff's evidence that the plaintiff already had an assistant on a
daily basis prior to
the accident and the plaintiff paid this
assistant an amount of R1,000.00 per month. This was not addressed in
any of the expert
reports. The plaintiff’s claim for loss of
earnings is premised on the fact that the plaintiff requires an
assistant after
the accident in question.
4.8
Prior to the accident in question, this
assistant helped the plaintiff with the carrying of heavy pots as
well as the cleaning thereof
as well as other heavy work. This is
similar to the work that the plaintiff requires assistance for
post-accident.
4.9
In the report of Mr Moodie it is alleged
that the Plaintiff earned a fairly significant amount of profit per
month for a food caterer/hawker.
The plaintiff could however not
provide any meaningful response as to why there was a complete lack
of proof of the plaintiff's
pre-morbid income.
4.10
The plaintiff alleges to have made an
average net profit of R17,000.00 per month. When I asked her
what she did do with all
this extra income every month, she laughed
inappropriately. When this question was repeated, she responded
vaguely by indicating
that she put this money in her "secret
place".
4.11
The plaintiff could provide no meaningful
answer why all this extra money was not banked as she did have a bank
account at the time.
4.12
In response to her question why she failed
to present bank statements, she indicated that because she was in
hospital "
they say my bank is
closed
". This response makes
no sense as the plaintiff was only hospitalised for a period of 3
(three) weeks according to the
medico-legal reports.
4.13
As far as the plaintiff's annual tax
returns are concerned, she indicated that she has filed a tax return
every year except for
the last year. None of these tax returns
were presented to court during evidence. According to the
plaintiff, she returned
to employment after 4 (four) months.
This evidence is at variance with what is recorded in all the
medico-legal reports where
it was alleged that the plaintiff only
returned to work in 2017, i.e. more than a year after the collision
occurred.
4.14
The plaintiff further testified that the
business had a Nedbank bank account. According to the
plaintiff, the bank just closed
this account in 2016. She did
not ask for statements.
ANALYSIS OF THE
PLAINTIFF'S EVIDENCE:
5.
5.1
The plaintiff's evidence was vague and
contradictory. During her evidence in chief she failed to
disclose that she was only
a partner in the catering business.
This had to be elicited from further questions posed by the court.
5.2
The plaintiff's entire claim is premised on
the fact that she would need an assistant post-accident to help her
with the carrying
of pots as well as the lifting of other heavy
equipment. She failed to disclose in her evidence in chief that
she in fact
already had an assistant pre-accident. This once
again was elicited by the court.
5.3
The plaintiff could provide no meaningful
answer as to why she failed to produce the bank statements of the
business or all of her
own personal bank statements (as opposed to
the limited bank statements that were discovered). The
plaintiff's evidence with
regard to what she earned per month was at
variance with what was contained or what was reported to Mr Moodie.
The plaintiff
further could not give an accurate indication of what
she spent per month on stock.
5.4
No evidence was presented whatsoever about
the alleged growth of the business pre-morbidly. Moreover, no
evidence was presented
of what amount (if any) the plaintiff paid her
business partner when she took over the business in 2015. It
stands to reason
that if the business was as profitable pre-accident
as the plaintiff alleges, then the plaintiff's business partner would
have
been entitled to some compensation after he sold his share of
the business to the plaintiff.
5.5
In
Southern
Insurance Association v Baily N.O at 116 G to 117 A
where Nicholson JA held:
"Where
the method of actuarial computation is adopted, it does not mean that
the trial judge is "tide down by inexorable
actuarial
calculations." He has a "large discretion to award what he
considers right" (per Holmes JA in Legal Insurance
Company Ltd v
Botes 1963 (1) SA 608 (A) at 611 F). One of the elements in
exercising that discretion is the making of a discount
for
"contingencies" or the "vicissitudes of life".
These include such matters as the possibility that the
plaintiff
may in the result have less than a "normal'
expectation of life, and that he may experience periods of
unemployment by reason
of incapacity due to illness or accident, or
to labour unrest or to general economic conditions. The amount of any
discount may
vary, depending upon the circumstances of the case. See
Van der Plaats v South African Mutual Fire and General Insurance Co
Ltd
1980 (3) SA 105
(A) at 114 - 115. The rate of the discount cannot
of course be assessed on any logical basis – the assessment
must be largely
arbitrary and must depend upon the trial judge's
impression of the case.
COST OF AN ASSISTANT:
6.
6.1
According to the Occupational Therapist,
the plaintiff sustained a left femur fracture in a motor vehicle
accident in 2005.
This fracture was managed with an open
reduction internal fixation which remains
in
situ
. After this accident the
plaintiff struggled to stand for long or lift heavy objects due to
left thigh pain. The plaintiff
continues to suffer left thigh
pain which she states was worsened following the accident in 2015.
6.2
It therefore seems clear that even prior to
the accident in question, the plaintiff struggled to stand for long
or to lift heavy
objects due to left thigh pain as a result of the
femur fracture that she sustained in a previous accident. It is
for that
reason that the plaintiff already required an assistant
pre-accident.
6.3
During the plaintiff's evidence in chief,
it was also confirmed that the plaintiff in fact employed an
assistant on a daily basis
and that this assistant was paid
approximately R1,000.00 per month. This assistant helped the
plaintiff with heavy lifting
as well as the cleaning of pots, etc.
6.4
The plaintiff's case against the defendant
is premised on the fact that the plaintiff will require an assistant
on a daily basis
for the rest of her life to enable the plaintiff to
achieve her pre-morbid level of earnings. As set out above the
plaintiff already
required an assistant pre-accident as well.
6.5
I requested the plaintiff to provide me
with an actuarial calculation that only deals with the cost of an
assistant. In terms
of the actuarial calculation provided, the
cost of an assistant until the plaintiff reaches the retirement age
of 65 (sixty-five)
years, amounts to R1,997,300.00. The cost of
this assistant is calculated at the monthly salary of R2,500.00 that
ultimately
growths to R3,200.00 per month coupled with inflationary
increases. This amount is significantly more than the amount of
R1,000.00 that the plaintiff paid for her previous assistant.
6.6
The only question that remains is what
contingency deduction ought to be applied, keeping in mind that the
plaintiff already employed
an assistant pre-accident to assist the
plaintiff with heavy lifting as well as the cleaning of pots, etc.
6.7
I am of the view that a contingency
deduction of 50% is fair and reasonable.
6.8
Once a contingency deduction of 50% is
applied, a future loss of earnings in the amount of R998,650.00 is
calculated.
PAST LOSS OF EARNINGS:
7.
7.1
With the generally vague, unreliable and
contradictory evidence of the plaintiff, it is impossible to
establish with any degree
of certainty what the plaintiff's
pre-morbid earnings were.
7.2
Mr Moodie in his evidence seeks to overcome
this hurdle by suggesting that the plaintiff could have earned an
amount of R17,000.00
as an ambulance assistant and accordingly that
figure should be used. During closing argument counsel for the
plaintiff raised
a similar argument. In quantifying the plaintiff's
past loss of earnings, it is entire irrelevant to suggest that the
plaintiff
in an entirely different occupation could have earned a
similar amount to the amount alleged by the plaintiff.
7.3
In my view the plaintiff’s claim in
respect of past loss of earnings cannot be quantified by the
actuarial calculation proposed
on behalf of the plaintiff.
7.4
Prior to commencing the catering business,
the plaintiff earned approximately R5,000 per month. The Plaintiff
returned to work approximately
four months after the collision
occurred. I accept that the plaintiff post-morbidly was not as
productive as before.
7.5
Due to the contradictory and unreliable
evidence I am unable to agree with the actuarial calculation
pertaining to past loss of
earnings. In my view this is a matter
where a lump sum ought to be awarded. Given the plaintiff’s
previous earnings of R5,000
per month in 2014 and given the fact that
the plaintiff earned some money post-accident.
7.6
I am of the view that an amount of R200,000
is a fair and reasonable amount in respect of past loss of income.
7.7
I am of the view that the plaintiff did not
discharge the onus of showing that the catering business would have
grown as postulated
in the report of B Moodie. Accordingly save for
the costs of the assistant and the lump sum awarded in repsect of
past loss of
earnings no additional amounts are awarded in respect of
future loss of earnings.
7.8
I have been provided with a copy of a draft
order by plaintiff's counsel. I have inserted the total figure
of R1,198,650 (R998,650.00
+ R200,000) in the draft order and I
hereby make the draft order marked “X”an order of court.
SIGNED
AT PRETORIA ON THIS 21
st
DAY OF JANUARY 2021.
MARITZ
AJ
Counsel for Plaintiff:
Adv. Phathutshedzo Tshavhungwe
On behalf of the
Defendant: Unrepresented